Guest Column
| January 2, 2019

The Next Turn For 'Waters of the United States'

By Joshua A. Bloom

After the Supreme Court, in its 2006 Rapanos v. United States decision, admonished the U.S. EPA and Army Corps of Engineers to once and for all come up with an acceptable definition of “waters of the United States,” which is the linchpin for all regulation under the Clean Water Act, the agencies, nine years later, finalized regulations redefining that term in their 2015 Rule. However, that effort triggered numerous lawsuits, ultimately staying implementation of the regulation in some parts of the country but not others, and, under the Trump Administration, generated proposed interim regulatory measures and a presidential executive order that directed EPA and the Corps to do away with the 2015 Rule. Now, the EPA and the Corps have proposed a comprehensive regulation that would, in large part, reverse a number of provisions of the 2015 Rule and considerably limit the scope of federal authority over water pollution.

The Clean Water Act provides that discharges of pollutants to “navigable waters” are prohibited absent an appropriate permit or exemption. The Act simply defines “navigable waters” as “waters of the United States,” and provides no further express guidance on what that term means. After the Clean Water Act was enacted in 1972, most courts, including the Supreme Court, as well as the overseeing agencies, interpreted the Act and Congressional intent to provide a broad scope of federal authority, bounded by the parameters of the government’s Commerce Clause powers. That began to change in 2001 with the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”), in which the Court ruled that the Corps’ “migratory bird” rule, which conferred federal Clean Water Act jurisdiction over isolated, intrastate ponds that were used by migratory birds, was outside of the scope of the government’s authority. The Court in SWANCC reasoned that the use of “navigable waters” in the Act requires that a water have some connection to a navigable-in-fact water body before the federal government can regulate those waters. Waters without that connection, according to SWANCC’s 5-4 majority, should be regulated by states under their traditional land use powers. SWANCC was followed by the Rapanos decision, in which a 4-1-4 plurality ruled that the Corps again overstepped its authority in regulating isolated wetlands. Justice Scalia’s plurality opinion would have placed significant limits on federal authority, whereas Justice Kennedy’s concurring opinion, which most courts have considered controlling, would confer jurisdiction over non-navigable tributaries and wetlands only if they demonstrated a “significant nexus” to a navigable water. The 2015 Rule set forth a specific, quite complicated framework to establish whether such a significant nexus was present in any particular circumstance, to be assessed on a case-by-case basis. The present state of affairs, in view of the various lawsuits challenging the 2015 Rule and the Trump Administration’s reluctance to implement Obama-era regulations, is a regulatory environment that lacks functional clarity.

In response to the 2015 Rule, and the executive order directive (which included an order to follow the Scalia plurality opinion from Rapanos), the EPA and the Corps have now proposed a “waters of the United States” definition that, according to the agencies, is “easier to implement,” does not encroach on traditional state powers, and adheres to constitutional limitations. The proposed rule in many ways tracks the Scalia plurality opinion. This is contrary to the conclusion of the majority of courts considering “waters of the United States” subsequent to Rapanos, which, following Supreme Court precedent on plurality rulings, is that the Kennedy “significant nexus” concurrence is controlling. Some of the more significant elements and consequences of the proposed rule include the following:

The overarching theme of the proposed definition is that only waters that are navigable in a traditional sense, or other waters or wetlands that have a demonstrable direct connection with those waters, are within the scope of Clean Water Act regulation.

Generally, the proposed definition retains as within the scope of “waters of the United States” waters that are not controversial — “traditional navigable waters,” “territorial seas,” and tributaries of such waters. But, in opposition to decades of regulation, the proposal would delete “interstate” waters from the definition — meaning that it is not enough that a water would otherwise be within the stream of commerce and otherwise subject to federal authority to be considered a “water of the United States” — rather, it needs to be both within the stream of interstate commerce and directly associated with a navigable-in-fact water.

In line with the Scalia plurality, “ephemeral” streams and other waters, which rely on precipitation events for their flows, and are particularly prevalent in the western United States, would no longer be subject to Clean Water Act regulation. If this portion of the proposed rule were to be implemented, innumerable water features, for example, certain arroyos and washes, now regulated under the Clean Water Act, would cease being “waters of the United States.”

The proposed regulation would remove the possibility of jurisdiction over a tributary or wetland that has a “mere” hydrological connection with a navigable water. As proposed, an “adjacent” wetland would need to “abut”, i.e., touch “at least one point or side of a jurisdictional water,” or have a direct hydrological surface connection with, that jurisdictional navigable water. This would arguably negate recent Fourth and Ninth Circuit decisions, which held that although groundwater itself is not a water of the United States, discharges through groundwater that have hydrological connections to jurisdictional waters could be regulated.

The implications of the proposed rule are not limited to the Clean Water Act. Under Section 7 of the Endangered Species Act, federal agencies must “consult” with, depending on the species at issue, the Fish and Wildlife Service or National Marine Fisheries Services if the agency’s action “may affect” a listed species or designated critical habitat. As part of that consultation, if it is determined that the agency action, such as the Corps issuing a Clean Water Act section 404 wetland fill permit, will have an adverse effect on the species or habitat, the action agency will typically require, as part of any approval or permit issuance, measures to mitigate those impacts. However, if, as would result from the proposed “waters of the United States” rule, many wetlands would be outside of Clean Water Act jurisdiction, no Corps permit would be required, and therefore no Section 7 consultation would occur.

The fate of the proposed rule is not certain. The 2015 Rule, when first proposed and put out for notice and comment, generated over 1 million comments. The proposed rule will generate at least that level of interest. Once it becomes a final action, lawsuits will follow. That litigation will once again land on the doorstep of the Supreme Court. By then, a new administration may occupy the White House. Perhaps we will then be debating a proposed 2021 “waters of the United States” rule!

Joshua A. Bloom is a Principal at Meyers Nave in the firm’s Land Use and Environmental Law Practice Groups. With more than 25 years of experience, he specializes in all areas of state and federal environmental and natural resources law, including complex environmental litigation, brownfields, environmental aspects of transactional matters, and compliance counseling, representing both public and private clients. (jbloom@meyersnave.com, 800.464.3559

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